Opinion
E052355
08-24-2011
THE PEOPLE, Plaintiff and Appellant, v. DANIEL SHELTON, Defendant and Respondent.
Paul Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. Kenneth Nordin, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF10001349)
OPINION
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Dismissed.
Paul Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.
Kenneth Nordin, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant Daniel Shelton brought a motion to suppress evidence (Pen. Code, § 1538.5) to be heard at the time of the preliminary hearing on a complaint alleging unlawful possession of methamphetamine at a casino owned by the Cabazon Band of Mission Indians. The motion was granted and defendant was discharged. The People did not bring a motion in the superior court to reinstate the complaint pursuant to Penal Code section 871.5, filing a notice of appeal instead. Because an order granting a motion to suppress evidence by a magistrate is not appealable under Penal Code section 1238, we dismiss the appeal.
The prosecutor referred to the tribe as the Cahuilla Band of Mission Indians but the public safety officer, Donovan Mager, testified he is employed by the Cabazon Band of Mission Indians.
BACKGROUND
Donovan Mager (Mager) is a public safety officer employed at the Fantasy Springs Casino, which is owned by the Cabazon Band of Mission Indians (the tribe). Mager did not attend or graduate from a police academy. His job involved the protection of casino and tribal assets, and his duties require him to patrol the casino gaming floor and casino grounds, among other areas of the reservation. Tribal security officers have the authority to detain persons suspected of crimes, and to enforce the policies and procedures of the casino, but not to arrest.
As a security officer, Mager has the authority to undertake Terry patdown searches, and to detain someone for the Riverside Sheriff's Department.
Referring to Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].
The usual procedure is for a security officer, who is armed and in uniform, to make contact with the individual, escort the individual to an interview room if "justified cause" exists, conduct a patdown search, serve the individual with exclusion papers, and then release the person. The tribe authorizes security officers to exclude people from the casino and to enforce its policies and procedures. If a person is detained for a criminal violation, the security officer will hold the individual until the local law enforcement agency picks the individual up.
On June 16, 2010, at approximately 6:00 p.m., Mager was notified by surveillance that defendant was using different Players Club cards in a slot machine in the casino. Players Club cards are issued by the casino in the name of an individual patron and are inserted into slot machines. The cards are not transferrable. When contacted, defendant produced his identification and admitted using his friends' cards in the slot machine. Mager asked defendant to accompany him to take care of paperwork and informed defendant he would be subject to a 72-hour exclusion from the property.
Mager obtained surveillance footage from the surveillance team, and escorted defendant to the interview room. The interview room is a 10-by-10 room with a bench and a magnetic gate that locks from outside the room. Then Mager informed defendant that he was going to pat him down for officer safety according to casino policy, and defendant pulled a glass pipe used for ingesting controlled substances from his front pocket. Mager patted defendant down and found approximately 12 Players Club cards, all in different names, none of which was defendant's name. Mager also found a small baggie of white crystalline powder that was later tested and found to be methamphetamine. Defendant was handcuffed at some point prior to the arrival of the sheriff's deputy.
A sheriff's deputy placed defendant under arrest. The sheriff's deputy admonished defendant of his right to remain silent (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and defendant agreed to speak with the deputy. Defendant admitted he had a pipe in his pocket and acknowledged that the bindle of suspected methamphetamine was his.
The People filed a complaint alleging that defendant unlawfully possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and paraphernalia used to smoke substances. (Health & Saf. Code, § 11364, subd. (a), count 2.) It was further alleged that defendant had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd, (c)(1)), and three prison priors. (Pen. Code, § 667.5, subd. (b).)
Prior to the preliminary hearing, defendant filed a motion to suppress evidence. (Pen. Code, § 1538.5.) By stipulation, the motion was heard at the time of the preliminary hearing. After hearing testimony in connection with the suppression motion and preliminary hearing, the magistrate granted the motion to suppress evidence and discharged defendant. The People filed a notice of appeal.
DISCUSSION
The People argue that the trial court erred in granting the motion to suppress evidence because the California Constitution prohibits exclusion of evidence unless it is required by a ruling of the United States Supreme Court, and because there are no United States Supreme Court decisions extending the exclusionary rule to Indian tribes under the Indian Civil Rights Act. (25 U.S.C. § 1301 et seq.) Unfortunately, because the People failed to bring a motion to reinstate the complaint pursuant to Penal Code section 871.5, the magistrate's ruling is not appealable.
Because the appeal must be dismissed, we do not reach the merits of the issue which was briefed, except to note that the theory asserted on appeal was not presented to the lower court for determination. Absent considerations not present here, a new theory may not be raised for the first time on appeal where the defendant had no notice of the new theory and the court had no opportunity to consider it. (Green v. Superior Court (1985) 40 Cal.3d 126, 137-138; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.)
The Magistrate's Ruling at or Prior to the Preliminary Hearing Is Not
Appealable Pursuant to Penal Code Section 1238.
The People assert that the magistrate's ruling is appealable pursuant to Penal Code section 1238, subdivision (a)(7). We disagree.
Except under limited circumstances, enumerated in Penal Code section 1238, the People have no right to appeal in criminal cases. (People v. Drake (1977) 19 Cal.3d 749, 754; People v. Leonard (2002) 97 Cal.App.4th 1297, 1299.) Subdivision (a)(7) of Penal Code section 1238 permits an appeal by the People from "[a]n order dismissing a case prior to trial made upon motion of the court pursuant to Section 1385 whenever such order is based upon an order granting the defendant's motion to return or suppress property or evidence made at a special hearing as provided in this code." Penal Code section 1238, like section 1466, provides for appeal from certain orders and judgment of trial courts, not magistrates. (People v. Superior Court (Chico etc. Health Center)(1986) 187 Cal.App.3d 648, 655.)
The "special hearing" referred to in Penal Code section 1238, subdivision (a)(7), is a hearing on a suppression motion, made in the superior court after the filing of an information or indictment, as provided by Penal Code section 1538.5, subdivision (i). When a motion is made in the superior court after the defendant has been held to answer at the preliminary hearing, and has been granted after a special hearing, subdivision (o) of Penal Code section 1538.5 provides that the People may seek appellate review of a trial court's ruling by filing a petition for writ of mandate or prohibition. (People v. Carrington (1974) 40 Cal.App.3d 647, 649.)
A ruling on a suppression motion made by a magistrate at or before the preliminary hearing is not "made at a special hearing" in the superior court within the meaning of Penal Code section 1238, subdivision (a)(7). A magistrate presiding at a preliminary hearing does not sit as a judge of a court, and exercises none of the powers of judges in court proceedings. (People v. Richardson (2007) 156 Cal.App.4th 574, 584, quoting People v. Newton (1963) 222 Cal.App.2d 187, 189.) A magistrate's powers at a felony preliminary hearing are purely statutory. (People v. Superior Court (Feinstein)(1994) 29 Cal.App.4th 323, 328.) When a judge acts in the capacity of a magistrate, he or she does not do so as a judge of a particular court but rather as one who derives his powers from the provisions of Penal Code sections 807 and 808. (People v. Superior Court (Chico etc. Health Center), supra, 187 Cal.App.3d at p. 654.)
A magistrate's determination that there is not sufficient cause to believe the defendant guilty of a public offense results in a dismissal pursuant to Penal Code section 871, because it precludes a prosecutor from proceeding to trial on the offenses originally charged. (People v. Williams (2005) 35 Cal.4th 817, 828-829; People v. Wallace (2004) 33 Cal.4th 738, 749-750.) A magistrate also may dismiss a complaint under Penal Code section 1385, either of his or her own motion or upon application of the prosecuting attorney, in the furtherance of justice. (Pen. Code, § 1385, subd. (a).) If the magistrate dismisses the complaint under either provision, the People may move in the superior court under Penal Code section 871.5 to reinstate the complaint. (Pen. Code, § 871.5, subd. (a); People v. Konow (2004) 32 Cal.4th 995, 1000-1001; People v. Dawson (2009) 172 Cal.App.4th 1073, 1087.)
When the magistrate at a preliminary hearing grants a defense motion to suppress evidence, declines to hold the defendant to answer for the charged offenses, and consequently dismisses the complaint, subdivision (j) of Penal Code section 1538.5 gives the prosecution three options: it may (1) file a new complaint, (2) seek an indictment after the preliminary hearing, or (3) move to reinstate the complaint pursuant to Penal Code section 871.5. (People v. Toney (2004) 32 Cal.4th 228, 232.) Penal Code section 871.5 gives the superior court jurisdiction to review an order of a magistrate dismissing a felony complaint following the granting of a Penal Code section 1538.5 motion to suppress evidence. (People v. Salzman (1982) 131 Cal.App.3d 676, 683, citing Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 998.)
Dismissal of a complaint by a magistrate based upon a ruling on legal grounds on any motion properly before and decided by the magistrate is subject to review by the superior court on motion by the People on the ground that, "'as a matter of law, the magistrate erroneously dismissed the action.'" (Vlick v. Superior Court, supra, 128 Cal.App.3d at p. 999.) Thus, a motion brought by the prosecution under Penal Code section 871.5 is not a relitigation of the defendant's suppression motion. Instead, it is simply a means to have the superior court determine the legal propriety of the magistrate's dismissal of the complaint after granting the defendant's motion to suppress evidence. (People v. Toney, supra, 32 Cal.4th at p. 233.) Section 871.5 is the exclusive method by which the People may obtain a review of a magistrate's order of dismissal. (People v. Shrier (2010) 190 Cal.App.4th 400, 409, citing People v. Mimms (1988) 204 Cal.App.3d 471, 481.)
Here, the defendant was not held to answer at the preliminary hearing because there was insufficient evidence to hold defendant to answer after the magistrate granted the suppression motion. Because there was no information filed in the superior court, and no suppression motion filed in the superior court, there was no "special hearing" in the superior court within the meaning of Penal Code section 1538.5, subdivision (i). The proper procedure would have been for the People to seek reinstatement of the complaint pursuant to Penal Code section 871.5.
Because the dismissal did not occur after a "special hearing" after the defendant was held to answer at a preliminary hearing, the magistrate's ruling on the suppression motion was not appealable pursuant to Penal Code section 1238, subdivision (a)(7).
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
Hollenhorst
J.
Richli
J.